III. BACKGROUND

Gays and the Military Before "Don't Ask, Don't Tell"Gay men and lesbians have served in the U.S. armed forces from their earliest days. Indeed, Baron Frederich von Steuben, reportedly a homosexual, was one of Gen. George Washington's key strategists during the war of independence and is credited with bringing order and discipline to the Continental Army. But the anti-gay prejudice that has, until recent years, been widespread in U.S. society, has also been long entrenched in the military. The first known case of a soldier being discharged from the U.S. military for homosexual acts took place in February 1778: Lt. Gotthold Frederick Enslin was court-martialed after being discovered in bed with another soldier, and he was expelled from the Continental Army by order of Gen. Washington.1

Although the U.S. military discharged soldiers for homosexual acts throughout the nineteenth century, U.S. military law did not expressly prohibit homosexuality or homosexual conduct until World War I. Since then, military law has criminalized homosexual sexual activity and, until 1994, military regulations expressly excluded gay men and lesbians from service.

Military Sodomy LawsThe Articles of War of 1916, legislated by Congress and entering into effect in 1917, listed "assault with intent to commit sodomy" as a punishable offense. In 1920, a revision of the articles for the first time named consensual sodomy by servicemembers as a crime. The Uniform Code of Military Justice, adopted in 1951 to replace the Articles of War, maintained the criminalization of sodomy in Article 125:

(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.

(b) Any person found guilty of sodomy shall be punished as court-martial may direct.2

A servicemember who engages in consensual sex with an adult of the same sex faces a maximum penalty for sodomy of five years' imprisonment, forfeiture of all pay and allowances, and dishonorable discharge.3 Same-sex sexual activity can also be prosecuted under Article 133, which prohibits "conduct unbecoming an officer and gentleman" and Article 134, which prohibits offenses that undermine good order and discipline or that "bring discredit upon the armed forces."4

Article 125 does not draw a distinction between same-sex and heterosexual couples, and anecdotal reports suggest that heterosexuals in fact appear to be court-martialed under Article 125 in greater numbers than gay men and lesbians. But the majority of heterosexuals court-martialed under Article 125 are charged with sodomy in the context of rape or child sexual abuse; charges of consensual, adult, heterosexual sodomy generally only appear in two instances: as plea bargains in cases where the original charge was rape, and when they supplement charges of adultery.5

A few examples illuminate the way the military's sodomy law has been used against gays and lesbians in recent decades. In 1982, Air Force Lt. Joann Newak was convicted of three counts of consensual sodomy (for conduct that took place off-base, in the privacy of her bedroom), three minor narcotics charges, and conduct "unbecoming an officer." She was sentenced to seven years' hard labor in the military prison at Fort Leavenworth.6 The case against Lieutenant Newak began when Donna Ryan, stationed at the same Air Force base as Lieutenant Newak, was arrested for drunk driving and, following her arrest, offered to become an informant for the Air Force Office of Special investigations (OSI). Ms. Ryan befriended Lieutenant Newak, whom she suspected of being a lesbian, and gathered evidence to support a charge of sodomy against her. Based on Ms. Ryan's testimony, the OSI proffered charges against both Lieutenant Newak and her lover, Lynne Peelman (against whom charges were later dropped in return for her testimony).

Corporal Barbara Baum, a twenty-three-year-old military policewoman at the Marine Corps Recruit Training Depot at Parris Island, South Carolina, was a victim of one of the most extensive "witch hunts" known to have occurred against gays and lesbians in the military.7 Between 1986 and 1988, almost half of the post's 246 women were questioned about alleged lesbian activities, with sixty-five women eventually leaving the Marines as a result of the inquiry.8

In 1988, when Baum was about to begin a new assignment in Hawaii, the Naval Investigative Service questioned her at Parris Island because officials sought her assistance in the ongoing investigation of alleged lesbian activities. Baum refused to help them, and was tried by a general court-martial. Based on testimony provided by her former lover, Lance Corp. Diane Maldonado, who testified in exchange for immunity, she was tried, convicted of sodomy, indecent acts (Article 134),and obstruction of justice. Three weeks into her imprisonment, Baum accepted a promise of clemency and an upgraded discharge in return for giving investigators the names of more than seventy-seven women she knew or suspected to be lesbians. Baum was imprisoned for six months. In 1990, her conviction was overturned by a military appeals court, which found that two of the jury members in her trial had extrajudicial knowledge of the evidence and an interest in the outcome of the case, and that the judge had allowed uncorroborated testimony.9

Although infrequent, sodomy prosecutions have continued since enactment of the "don't ask, don't tell" policy. In 1996, for example, Air Force Major Debra Meeks was court-martialed under the sodomy statute. Meeks, a twenty-year-veteran, was about to retire when a civilian claimed that Meeks had threatened her at gunpoint if she told anyone of their alleged affair. No action was taken because the Air Force considered the evidence inconclusive, but then, just before she was to retire, Meeks was charged with conduct unbecoming an officer (Article 133). She pleaded not guilty, and then charges of sodomy were added.10 Meeks, who faced up to eight years in prison and forfeiture of her entire pension if convicted, was acquitted of all charges.

In May 2001, the Commission on the 50th Anniversary of the Uniform Code of Military Justice (UCMJ)-a panel of legal and military experts-recommended that Congress repeal the sodomy provisions of the UCMJ.11 The commission held hearings and solicited written comments on several military justice issues, including the criminalization of sodomy. According to the commission: "[T]he issue of prosecuting consensual sex offenses attracted the greatest number of responses from both individuals and organizations. The commission concurs with the majority of these assessments in recommending that consensual sodomy and adultery be eliminated as separate offenses in the UCMJ and the Manual for Courts-Martial."12 It concluded:

[T]here remain instances in which consensual sexual activity, including that which is currently prosecuted under Articles 125 and 134 [prohibiting offenses that undermine good order and discipline] may constitute criminal acts in a military context. Virtually all such acts, however, could be prosecuted without the use of provisions specifically targeting sodomy and adultery.13

The Commission's recommended that the sodomy and other "outdated" sex offense provisions of military law be replaced with a modern criminal sexual conduct statute similar to that of most states14 while realistically reflecting the offenses, such as fraternization, that should be proscribed under military law. In November 2002, the Pentagon disclosed that it would not implement the commission's recommendation regarding the anti-sodomy statute.15 The General Counsel's office wrote that Pentagon officials had agreed that the report's recommendations "do not warrant adoption."16

Although sodomy prosecutions are not common, the potential for such action remains a concern for gay men and lesbians in the military. Since the "don't ask, don't tell" policy was enacted, servicemembers have reported that the threat of court-martial under Article 125 has motivated them to accept administrative discharge. Indeed, the very existence of the sodomy law supports the discriminatory treatments of gays and lesbians embodied in the "don't ask, don't tell" policy.

Administrative Restrictions on Gay and Lesbian ServicemembersPrior to World War II, Army enlisted personnel suspected of engaging in homosexual acts were often considered unsuitable for military service and discharged.17 During the mass mobilization of troops for World War II, new regulations barred homosexuals from serving, and the military relied on psychiatrists to help keep those with "homosexual tendencies" out of the armed forces.18 There was a shift from a focus on homosexual acts to servicemembers' sexual orientation itself, even if they had not engaged in prohibited acts.19

During the war, each branch of the military issued its own policies concerning gay and lesbian personnel. In 1949, the newly established Department of Defense issued a memorandum setting forth a unified policy: "Homosexual personnel, irrespective of sex, should not be permitted to serve in any branch of the Armed Services in any capacity, and prompt separation of known homosexuals from the Armed Forces be made mandatory."20

Between 1950 and 1993, the ban on gay and lesbian servicemembers remained unchanged, although different services periodically revised the policy's actual wording.21 A 1981 Department of Defense Directive stated, "homosexuality is incompatible with military service."22 Under the directive, the discharge of "open" homosexuals was mandatory. Nevertheless, commanders continued to exercise a considerable degree of discretion, at times opting not to investigate or discharge highly valued servicemembers.23 Military statistics indicate that gay discharges dropped sharply in years when military personnel were most needed, for example, during the Korean and Vietnam wars.24

Rationales for Anti-Gay RestrictionsOver the last half century, the rationale for restrictions against gay men and lesbians in the military has changed. During World War II, the military embraced the view of homosexuality as mental illness.25 During the post-war period, gays and lesbians were said to be security risks, i.e., their desire to keep their sexual orientation secret would make them susceptible to blackmail. In 1957, however, a U.S. Navy report prepared under the direction of Navy Captain S.H. Crittenden, Jr. disputed that claim: "The concept that homosexuals pose a security risk is unsupported by any factual data.... The number of cases of blackmail as a result of past investigations of homosexuals is negligible. No factual data exist to support the contention that homosexuals are a greater risk than heterosexuals."26

A similar conclusion was reached three decades later in a 1988 report the Department of Defense had commissioned to review homosexuality and breaches of security. Emphasizing the absence of any evidence that gay men and lesbians posed a security or blackmail risk, the report noted: "In the 30 years since the Crittenden report was submitted, no new data have been presented that would refute its conclusion that homosexuals are not greater security risks than heterosexuals."27 The report not only refuted the military's contention that gays and lesbian servicemembers posed a heightened security risk, but it also called on the military to reexamine its policy of barring gay men and lesbians from military service: "If homosexuality is unrelated to job performance ... then the central issue is the validity of the long-time practice of denying military employment to homosexuals solely on the basis of their sexual orientation."28 According to the report, "atypical" orientation did not influence job performance: "Studies of homosexual veterans make clear that having a same-gender or an opposite-gender orientation is unrelated to job performance in the same way as is being left- or right-handed."29

Beginning in the 1980s, the military emphasized a new justification for excluding gay men and lesbians from service-that of the supposedly detrimental impact they would have on "unit cohesion."30 Regardless of how well a servicemember actually performed his or her duties, the homophobia or discomfiture of other soldiers might result in moral or unit cohesion problems. As one general told Human Rights Watch, "You've got to understand that a man's biggest fear is a sexual assault."31 The solution of the Pentagon was not to address the prejudice or fears of heterosexuals, or to develop codes of sexual conduct that would apply to all servicemembers. Instead it used the "unit cohesion" argument to insist on the exclusion of openly gay and lesbian servicemembers from the military.

As discussed below in chapter X, there is abundant research disproving the "unit cohesion" rationale for excluding from military service gay men and lesbians who are open about their sexual orientation.32In 1993, for example, both the General Accounting Office and the RAND Corporation published studies of the military experience in other countries that showed openly gay and lesbian servicemembers could be successfully integrated into military units without an adverse impact on unit cohesion, effectiveness or discipline.33 Indeed, RAND concluded that the most appropriate policy on gay men and lesbians in the military would be standards of professional conduct that were neutral with regard to sexual orientation.34 The Pentagon nevertheless refused to retreat from its position on gay and lesbian servicemembers. The "unit cohesion" argument remains the principal underpinning for the "don't ask, don't tell" policy.35

The "unit cohesion" justification for "don't ask, don't tell" is premised on the assumption that heterosexual servicemembers would react in an overwhelmingly negative way if known gay men and lesbians were allowed to serve. It is important therefore to note the changing attitudes in America - among the general public and within the armed forces - about gay men and lesbians. According to the Gallup Organization in 2002, 86 percent of Americans believed gays and lesbians should have equal rights with respect to job opportunities.36 According to a May 2001 Gallup poll, 72 percent of Americans said that gay men and lesbians should be hired in the armed forces, up from 57 percent in 1992.37 In an earlier January 2000 Gallup poll, respondents were asked about the military's policy regarding gay and lesbian servicemembers. Forty-one percent of the respondents said gay men and lesbians should be allowed to serve openly in the military, 38 percent said they should be allowed to serve under the current ("don't ask, don't tell) policy, and 17 percent said that they should not be allowed to serve at all.38 A Massachusetts Institute of Technology study released in 2001 showed that a majority of Americans (56 percent) were in favor of allowing gays to serve openly in the military.39

Military sociologists Charles Moskos and Laura Miller have conducted periodic surveys within the armed forces regarding attitudes toward gay men and lesbians. In 1992, they found that 77 percent of army men and 34 percent of army women opposed or strongly opposed gays in the military. In August 1998, the percentage had dropped to 52 percent among men and 25 percent among women.40 In another study, researchers found a significant change in the attitudes of Navy officers over a five-year period in the 1990s. In 1994, 58 percent agreed or strongly agreed that they felt uncomfortable in the presence of gays. By 1999, that percentage had dropped to 36 percent.41 In the same study, 39 percent said they personally knew a gay or lesbian servicemember.42

1Randy Shilts, Conduct Unbecoming: Gays and Lesbians in the U.S. Military (New York: World Publications, 1997), p. 11.

2 10 U.S.C. 925 (2002). According to the explanation provided in the Military Manual for Courts Martial:

It is unnatural carnal copulation for a person to take into that person's mouth or anus the sexual organ of another person or of an animal; or to place that person's sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation with an animal.

5 Human Rights Watch interview with Lt. Commander Anthony J. Mazzeo, Judge Advocate General's Corps, Norfolk Naval Station, Norfolk, Virginia, May 21, 1999. No branch of the U.S. military was able to provide Human Rights Watch with statistics regarding the number of Article 125 prosecutions, disaggregated by sexual orientation.

6 Newak's seven-year sentence was reduced on appeal to six years; after a sentence rehearing, she was sentenced to fourteen months' confinement, dismissal from the services, and forfeiture of all pay and allowances. Her sodomy conviction was eventually overturned after the Court of Military Appeals found that she had received improper counsel. Shilts, Conduct Unbecoming: Gays and Lesbians in the U.S. Military, pp. 393-394, 398-399, 436-437. Facts as described in Brief for the United States in Opposition Joanne C. Newak v. United States of America, In the Supreme Court of the United States, Petition for a Writ of Certiorari to the United States Court of Military Appeals, No. 89-757 (1989).

11 National Institute of Military Justice, Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice, May 2001, Section D, at http://uppmlj.hypermart.net/coxreport.html (accessed October 10, 2002). The commission's chair was Walter T. Cox III, former chief judge, U.S. Court of Military Appeals for the Armed Services. The other members were Capt. (ret.) Guy R. Abbate Jr., senior instructor at the Naval Justice School and a consultant to the Defense Institute of International Legal Studies and the Naval Justice School; Mary M. Cheh, professor of law, George Washington University Law School, who serves as a member of the Rules Committee of the U.S. Court of Appeals for the Armed Forces; Rear Admiral (ret.) John S. Jenkins, senior associate dean for administrative affairs at the George Washington University Law School; and Air Force Lt. Col. (ret.) Frank Spinner, an attorney in private practice who represents military personnel in courts-martial.

14 As of December 2002, only fourteen states criminalized consensual sexual relations between adults of the same sex. Sodomy Laws, Laws in the USA, at http://www.sodomylaws.org/usa/usa.htm, (accessed January 6, 2003).

15 Letter, William J. Haynes, II, general counsel of the Department of Defense to Eugene R. Fidell, president of the National Institute of Military Justice, November 7, 2002. Copy on file with Human Rights Watch.

23 The Navy, in particular, appears reluctant to discharge servicemembers who make statements acknowledging that they are gay or lesbian. Servicemembers Legal Defense Network reported in September 2002 that commanders did not initiate discharge proceedings for at least two servicemembers (an ensign and a hospitalman) at two different bases, despite the servicemembers' concerns over anti-gay statements and threats and, consequently, their own safety. Servicemembers Legal Defense Network, press release, September 24, 2002.

26United States Navy, "Report of the Board Appointed to Prepare and Submit Recommendations to the Secretary of the Navy for the Revision of Policies, Procedures and Directives Dealing with Homosexuality," Chairman S.H. Crittenden (Washington, D.C.: Government Printing Office, 1957), quoted in Craig A. Rimmerman, ed., Gay Rights, Military Wrongs (New York and London: Garland Publishing, Inc., 1996), pp. 272-3. The Navy refused to release the report for twenty years and even then complied only after a court ordered its release.

30 For all of the focus on the need for unit cohesion in the armed forces, there is no one definition of "unit cohesion." Cohesion is often divided into at least two types: social cohesion and task cohesion. Social cohesion develops when members of a group develop emotional bonds with each other. Social scientists have noted that high social cohesion may in fact be detrimental to unit performance, whereas moderate social cohesion may be beneficial. Task cohesion-considered by experts to be more necessary than social cohesion for good performance-is the shared goal that members are motivated to achieve together. RAND Corporation, Sexual Orientation, pp. 290-1.

31 Human Rights Watch interview, Fort Jackson, South Carolina, January 18, 2000. This general was a member of the task force that created the July 2000 Action Plan to combat anti-gay harassment.

32 Chairman S.H. Crittenden, United States Navy, "Report of the Board Appointed to Prepare and Submit Recommendations to the Secretary of the Navy for the Revision of Policies, Procedures and Directives Dealing with Homosexuality" (Washington, D.C.: Government Printing Office, 1957), and Defense Personnel Security Research and Education Center, "Nonconforming Sexual Orientations and Military Suitability," PERS-TR-89-002, December 1988.

33 General Accounting Office, "Homosexuals in the military: policies and practices of foreign countries," (GAO/NSIAD-93-215), June 1993; RAND Corporation, Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment, MR-323-OSD, 1993.

34 RAND also recommended that the military's sodomy statute be rescinded and that military law should only criminalize nonconsensual sexual activity, sex with minors, or acts on duty, on base, or in violation of anti-fraternization regulations.

35 C. Dixon Osburn, A Policy in Desperate Search of a Rationale: The Military's Policy on Lesbians, Gays and Bisexuals, University of Missouri-Kansas City Law Review, Vol. 64, No. 1 (Fall 1995), pp. 204-213.